CWPOA/12176/2008 on 29 December 2011

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

CWP(T) No. 12176 of 2008.

Decided on: 29th December, 2010. Surinder Kumar. …Petitioner.

-Versus- State of Himachal Pradesh and Others.

…Respondents.

Coram:

The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1No. __________________________________________________________ For the petitioner. : Mr. Tarlok Chauhan, Advocate.

For the respondents. : Mr. Vinod Thakur, Deputy

Advocate General with Mr. R.P.

Singh, Assistant Advocate

General for respondent No. 1.

Mr. Adarsh Sharma, Advocate, for

respondents No. 2 and 3. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge (Oral):

Disciplinary proceedings were initiated against the petitioner under Rule 14 of the CCS (CCA) Rules, 1965 on 16.08.2003. Inquiry Officer was appointed. He submitted the report to the Disciplinary Authority on 25.05.2005. A bare perusal of the inquiry report reveals that the petitioner has been exonerated by the Inquiry Officer. However, the Disciplinary Authority has dis-agreed with the findings of the inquiry report and has issued a memorandum dated 22.08.2005 to the petitioner. Petitioner has been granted 15 days’ time to file reply to the memorandum dated 22.08.2005.

2. Mr. Tarlok Chauhan, learned counsel for the petitioner has strenuously argued that it was incumbent upon the Disciplinary Authority to record separate tentative reasons 1 Whether the reporters of the local papers may be allowed to see the judgment?. No.

and thereafter, the same were required to the supplied to the petitioner, to enable him to make a representation against the same and only thereafter, the final findings could be recorded by the Disciplinary Authority. In this case, this procedure has not been followed by the Disciplinary Authority, which has led to the violation of principles of natural justice.

3. Mr. Vinod Thakur, learned Deputy Advocate General and Mr. Adarsh Sharma, learned counsel for respondents No. 2 and 3 have vehemently argued that the order dated 22.08.2005 is self speaking and no separate reasons were required to be recorded by the Disciplinary Authority tentatively.

4. I have heard the learned counsel for the parties and gone through the pleadings carefully.

5. The operative portion of the inquiry report reads thus:

“After making elaborate inquiry into the dispositions made by the defence and pleadings forwarded by prosecution & keeping in view the facts received thereof, undersigned has based to the conclusion that the charges framed against Shri Surinder Kumar Conductor have not been proved.”

6. It is for the Disciplinary Authority either to accept the findings of the Inquiry Officer or to dis-agree from the same. In case the Disciplinary Authority decides to dis-agree with the findings of the Inquiry Officer, in that eventuality, the Disciplinary Authority is required to record its tentative reasons and thereafter, the same are required to be conveyed to the petitioner to enable him to make a representation and only thereafter, the final findings could be recorded by the Disciplinary Authority. In this case, admittedly, the Disciplinary Authority has not recorded the separate tentative reasons as per the requirements of law. This issue is no more res integra in view of the law laid down by their Lordships of the Hon’ble Supreme Court in Punjab National Bank and Others Versus Chief Personnel (Disciplinary Authority), Punjab National Bank and Others, (1998) 7 Supreme Court Cases 84. Their Lordships have held that the Disciplinary Authority must record its tentative reasons for disagreement with the inquiry report and thereafter the reasons are required to be supplied to the delinquent officer to represent against the same and only after receipt of the representation, the findings are to be recorded. Their Lordships have held as under: “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7 (2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file representation before the disciplinary authority records its findings on the charges framed against the officer.”

7. Accordingly, the petition is allowed. Annexure A-6, dated 22.08.2005 is quashed and set aside. However, the liberty is reserved to the respondents to proceed with the matter in accordance with the discussion and observations made hereinabove and the law laid down by the their Lordships of the Hon’ble Supreme Court in the judgment cited above. No costs. [[[[[[[[[[[

(Rajiv Sharma)

Judge December 29, 2010. (bhupender)